A couple of recent unpublished decisions provide good examples of how ADA lawsuits can result in what looks to me like unnecessary expense, and how the Courts have created a standing battleground that does no one any good.

In Kreisler v Second Avenue Diner Corp. a wheelchair bound man sued a local diner that he couldn’t get into because of a step. The end result, after a bench trial, was injunctive relief with a total price tag of perhaps $14,000; less if tax credits were taken into account. An award of plaintiff’s attorneys fees will come later, but it seems almost certain that the defendant paid more for the defense than it would have cost to just make the changes.

More important, the opinion seems to describe a case where there was a lot of fighting without a lot of thinking. The defendant’s biggest cost was a ramp. It claimed that it couldn’t install a ramp because of city regulations, but admitted it had never tried to get a permit at all. Two of the modifications cost less than $1000 and were clearly required by the Accessibility Guidelines. It isn’t at all clear why the plaintiff thought these items were worth a fight.

The plaintiff, for his part, failed to put on any evidence that some of the most expensive requested modifications were “readily achievable” in terms of cost. The plaintiff always has the initial burden of proving that a modification is readily achievable, so it couldn’t have been much of a surprise that he lost on these items when there was no evidence at all.

The end result looks like something that a couple of reasonable people could have negotiated in an afternoon of constructive discussions, but in the heat of battle the line between the trivial and the critical seems to have been ignored by everyone but the judge. For defendants especially the lesson is clear. An ADA lawsuit is about money and should be fought to minimize the ultimate outlay.

In Harty v Lumber River Associates the court dismissed a complaint for lack of standing. The plaintiff was a resident of another state who visited the defendant’s shopping center only once and had a history of filing ADA lawsuits against businesses a long way from his home. There are always questions about standing in such cases, because to have standing to seek injunctive relief under the ADA the plaintiff must expect to return to the same business. Otherwise the requested injunction will do him no good, and federal courts won’t hear a case where they cannot grant effective relief.

What Harty illustrates is just how picayune considerations of standing can become as courts try to resolve an inherently factual question (is this guy really coming back?) based on affidavits while the case is in its early stages. The plaintiff’s affidavit stated he was going to visit the local town on two specific days to attend a gun show, and that the “planned to visit” the defendant’s shopping center at that time. What the plaintiff failed to do, according to the Court, was “conclusively demonstrate that his alleged future plans to re-visit defendants’ shopping center . . . existed at the time of the filing of the complaint.” (emphasis added). Since standing must exist on the day the suit was filed, an affidavit that sometime after the complaint was filed the plaintiff decided to re-visit the shopping center was not sufficient.

The court’s analysis was based almost entirely on decisions in other cases brought by the same plaintiff. Sometimes he got it right and sometimes he got it wrong. A cynic might observe that having been told exactly what the affidavit must say to be sufficient the plaintiff will probably always get it right in the future, especially since the affidavits have to prove a subjective intent to return that can hardly be disproven. Knowing that he has to plan a return trip before filing suit, won’t the plaintiff just go ahead and plan the trip in advance of filing so as to make sure the affidavit is sufficient?

I think the real problem is that it looks unseemly for a plaintiff to go travelling around looking for lawsuits, especially when the travels are hundreds of miles from home. Some courts just don’t like it and use standing as a way to reach an early dismissal of the case. Others don’t have a problem with it, and when you try to make sense of all the decisions there isn’t necessarily a lot of sense to be made. Until the courts can figure out something better than subjective intent to return as a way to resolve standing issues the outcome of any case will be unpredictable. Defendants need to keep that in mind as they gear up to attack a defendant instead of attacking any real ADA problem they may have.

Richard M. Hunt

Hunt Huey PLLC defends businesses in ADA and FHA accessibility lawsuits as well as advising businesses on how to avoid such lawsuits. For more information about our firm visit the Hunt Huey PLLC web site, hunthuey.com